Wale v Speaker of Parliament [2011] SBHC 121; HCSI-CC 73 of 2011 (17 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 73 of 2011

BETWEEN

MATTHEW WALE
(As Deputy Leader of the Official
Opposition Group)
Claimant

And

SPEAKER OF PARLIAMENT
First Defendant

And

JIMMY LUSIBAEA
Second Defendant

Mr Hapa for the Claimant
Ms Tongarutu for the First and Second Defendant

Date of Hearing: 4th October 2011
Date of Judgment: 17th October 2011

Judgment

1. This case concerns the provisions of section 51 of the Constitution (found in Chapter VI under the heading The National Legislature Part I – Parliament). It has arisen in the following circumstances. The Second Defendant ("Mr Lusibaea") was elected as Member of Parliament for the North Malaita Constituency following the national elections held in August 2010. At the time he, and another man, were the subject of criminal proceedings (Criminal Case No. 291 of 2007) where he faced several charges dating back to September 2000. On 16th November 2010 Mr Lusibaea pleaded guilty to two charges, one of unlawful wounding and one of assaulting a Police Officer in the execution of his duty. On 30th November he was sentenced to 24 months on the wounding charge and 9 months for the assault on the Police Officer. The sentences were ordered to be served consecutively. The written judgment of the sentencing judge runs to 23 pages.

2. Section 51(1) of The Constitution reads:

"Subject to the provisions of this section, if a member of Parliament is sentenced by a court in any part of the world to death or to imprisonment (by whatever name called) for a term of, or exceeding, six months, including a suspended sentence, he shall forthwith cease to perform his functions as a member of Parliament, and his seat in Parliament shall become vacant at the expiration of a period of thirty days thereafter:"

On the plain reading of the section and with nothing more, Mr Lusibaea is fairly and squarely caught by its provisions. He had been sentenced by a court to a term of imprisonment of more than six months.

3. The second leg of section 51(1) reads:

"Provided that the Speaker (or, if the office of Speaker is vacant or he is for any reason unable to perform the functions of his office, the Deputy Speaker) may, at the request of the member, from time to time extend that period for thirty days to enable the member to pursue any appeal in respect of his conviction or sentence so however that extensions of time exceeding in the aggregate one hundred and fifty days shall not be given without the approval of Parliament signified by resolution."

The First Defendant ("The Speaker") was clearly aware of that provision. His evidence [1] is he wrote to Mr Lusibaea on 6th December. A copy of the letter is exhibited as "AK1". In the letter The Speaker informed Mr Lusibaea, "By operation of law the North Malaita seat will become vacant on midnight 30th December 2010 as provided for under section 51(1) of the Constitution". The Speaker went on to say he was aware of an appeal being lodged on 3rd December and he reminded Mr Lusibaea that, ".. it was important that you write a letter to the Speaker's office seeking an extension of 30 days before the initial period expires on 30 December..".

4. Mr Lusibaea duly replied asking for an extension of 30 days. The letter is exhibited as "AK2". The Speaker acknowledged the letter (See "AK3"). Mr Lusibaea asked for a further extension (See "AK4") on January 11th 2011. On 17th January 2011 The Speaker received a letter from Mr Lusibaea's lawyer. The letter is exhibited as "AK5". In his sworn statement the Speaker says (at paragraph 14), "In view of the position taken by (Mr Lusibaea's) lawyer, I did not grant any further extension of time". The wording is slightly ambiguous but I have taken it to mean The Speaker only granted the one extension, that is to 30th January 2011.

5. Mr Lusibaea continued to sit as an MP beyond 30th January 2011 and still sits today. The question posed by this case is whether he is entitled to do so. In the Claim filed on 4th March 2011, the Claimant ("Mr Wale") asks for, "a declaration (Mr Lusibaea) cannot attend any Parliament meeting as the exception in S 52(2) does not apply to him.." The reference to S 52(2) is incorrect. It was acknowledged as incorrect at a very early stage and this matter has proceeded on the basis the reference should have been to section 51(2). Mr Wale was given leave to amend the claim following the Chapter 15 conference. The Claim has not been amended. The only live issues before the court are whether Mr Lusibaea is caught by the provisions of section 51(1) and if so, can he rely on the provisions of section 51(2) to continue sitting as an MP.

6. There is no suggestion Mr Lusibaea is not caught by section 51(1). It is argued by both Mr Lusibaea and The Speaker the reason why he has not had to forthwith cease to perform his functions as a Member of Parliament and why his seat in Parliament has not become vacant is because of the qualifying provisions of section 51(2). It reads:

"(2) If at any time before the member vacates his seat he is granted a free pardon or his conviction is set aside or his sentence is reduced to a term of imprisonment of less than six months or a punishment other than imprisonment is substituted, his seat in Parliament shall not become vacant under the provisions of this section, and he may again perform his functions as a member of Parliament."

It is not said that Mr Lusibaea has been granted a free pardon. Nor is it said his conviction has been set aside. It is not any part of the defendants' case that a punishment other than imprisonment has been imposed. The sole basis of the defence is the prison sentence has been reduced to a term of less than six months.

7. The position taken by both the defendants is based on the remissions applied to the sentence handed down by Cameron J on 30th November 2010. In short it is said the Minister of Police, National Security and Correctional Services ("the Minister") granted a remission of 95% "of the balance of Lusibaea's custodial sentence" [2]. The balance of the sentence was what was left after deducting the "statutory remission" of 1/3rd [3]. There were other considerations which left a period of "one month and one day" and the Minister granted Mr Lusibaea an early release in respect of the remaining period. As a result The Speaker says he was entitled to reach the decision he did (to allow Mr Lusibaea to continue sitting) as the qualifying provision of section 51(2) came into operation. Mr Lusibaea also adopts those reasons for saying he can still sit as an MP and why Mr Wale is not entitled to the declaration sought.

8. Before turning to the specific issue of the effect of the remissions it is necessary to return to the claim. At the time the Claim was filed Mr Wale was not represented, he was a litigant in person. The wording of the Claim reflects that situation. There is no explicit claim against The Speaker. In the statement of case Mr Wale does refer to a declaration by The Speaker that Mr Lusibaea was entitled to sit and states that it (the declaration) was a violation of his (Mr Wale's) constitutional right to sit as a duly elected Member of Parliament [4]. It has not been suggested the "declaration" by The Speaker which Mr Wale challenges arose as a part of The Speakers duties and powers under Standing Orders. What seems to have happened is representations were made to The Speaker and he then made a public announcement setting out his views as to why he thought Mr Lusibaea could perform his functions as a Member of Parliament. It should be mentioned again that Mr Wale was given leave to amend his claim but did not do so. In any event it matters little whether this court is being asked to review The Speaker's declaration or whether it is being asked to rule on Mr Lusibaea's continued membership of Parliament. The end result will be the same no matter which route is taken. The High Court has jurisdiction to decide the question of membership and no one has argued otherwise. Section 52 of the Constitution states;

52.—(1) The High Court shall have jurisdiction to hear and determine any question whether—

(a) any person has been validly elected as a member of Parliament; or

(b) any member of Parliament has vacated his seat therein or is required by virtue of section 51 of this Constitution to cease to perform his functions as a member.

(2) No appeal shall lie from any decision of the High Court in proceedings under the preceding subsection.

What is important is that all those affected by a decision on Mr Lusibaea's membership of Parliament have been able to address the court and have done so. Certainly Mr Wale, The Speaker and Mr Lusibaea have addressed the court The Attorney General was invited to do so but his office has not been heard of since 19th August 2011. There is no reason why the court should not proceed to judgment in this case.

9. Returning now to the essential question in this case, what was the effect of the Minister's grant of remissions? This is not the same as asking whether the decision by the Minister to grant remissions was proper exercise of his powers. If that question had to be answered I would probably have to point out that according to the letter written by the Minister [5] it looks very much as if he went through the sentencing considerations set out in Cameron J's judgment, decided that His Lordship was wrong on all or most of them and proceeded, much like a court of appeal, to re-sentence Mr Lusibaea.

10. There is no real question about the Minister's right to grant remissions. Section 38(2) of the Act says;

"The Minister may grant further remission upon the recommendation of the Commissioner ".

The Minister is authorised, by section 75 (1), to make regulations dealing with such matters as remission. His authority to remit "the whole or any part of a sentence" is found in Regulation 198. There is a possible conflict between section 38(2) and Regulation 198 because the latter also brings in the Parole Board. However, the Parole Board is created by section 73 of the Act and its functions are set out in section 73(5). By section 73(5) it is entitled to make recommendations to the Minister about, "any other matter prescribed by regulation". Whether this means separate regulations specific to the Parole Board or the regulations made pursuant to section 75 (1) is not an issue which need concern the court in this case. There is no doubt, upon recommendations being made to him remissions can be granted "at the discretion of the Minister" [6].

11. The declaration and preamble to the Constitution of Solomon Islands is very clear and simple and says;

"...all power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution".

It has long been recognised that there is a separation of powers between those three arms of government;.

"...the Constitution of Solomon Islands does indeed provide for a separation of powers and that the separate power in the Judicature under the Constitution cannot be usurped or infringed either by the Executive or the Legislature. Under the Constitution as it stands the judicial power cannot be absorbed by the legislature and taken out of the hands of the judges."

12. That does seem to be the fundamental problem in this case. The line that separates the powers and functions of the judiciary from those of the executive has become blurred. The Minister and The Speaker seem unable to distinguish between judicial power and functions and executive power and functions. It is argued on behalf of the defendants that it is not only the judiciary which can reduce a sentence but that, "the executive arm of the government through the constitutional and statutory powers vested in the Head of State and the responsible Minister of the Crown" can do so as well. The power and authority of the Governor General acting, "in the name of and on behalf of the Head of state" are amply set out in section 45 of the Constitution. No such authority is given to Ministers. In fact, in such matters Ministers are effectively removed from the equation by section 35 of the Constitution. Regulation 116 is also cited as authority for the Minister to consider petitions for pardons. It does nothing of the sort. The regulation simply allows a prisoner to petition the Governor-General or the Minister "about his or her conviction or sentence". The regulation does not give the Minister any powers to pardon a prisoner following receipt of a petition. The authority of the Minister is set out in the Correctional Services Act 2007 ('the Act") and associated regulations.

13. The exercise of the authority by the Minister to grant remissions of part or the whole of a sentence reduces the length of the sentence. It does not cloak the Minister with power and authority of the Head of State or the judiciary. The separation of powers enshrined in the Constitution cannot be so simply glossed over. It would be just as wrong for the courts to usurp the powers of the Executive or the Legislature. The courts have very limited power to remit sentences. They can only do so in a quasi-appellate manner when dealing with Local Court decisions (See section 27 of the Local Courts Act [Cap.29]). The remission of sentences is largely reserved for the Minister and the Commissioner. It would be wrong for the court trespass in the area of remissions. That is illustrated by an Irish Supreme Court case

14. In that case, The People (Director of Public Prosecutions), Prosecutor, v Padraig Finn [7] the Supreme Court were dealing with a case where in the lower court the trial judge imposed a sentence of imprisonment and ordered that the case be re-listed before him to review the sentence and indicated that he would hear evidence at the review date as to the conduct of the defendant in prison. The matter came before the Central Criminal Court in October, 1998, when the trial judge released the defendant on the basis of certain undertakings, but directed that the case should be listed again so that he could be told of the supervision. A further hearing took place in April, 1999, when the trial judge suspended the remainder of the sentence. In November, 1998, the prosecutor applied to the Court of Criminal Appeal arguing the sentence imposed in October, 1998 was unduly lenient. The defendant objected on the ground that the application was out of time as it was not taken within 28 days from the day on which the sentence was imposed. The result of the appeal is largely irrelevant in this case but the reasoning of the Irish court is very relevant.

15. The Supreme Court was critical of the practice adopted by the trial judge and a reason why was put in this way;

"First, there is the factor identified by Henchy J in People (Director of Public Prosecutions) v Cahill [1980] IR 8, ie that a sentence in this form is, in effect, an invasion by the judicial arm of government of the executive domain which is not authorised by law. The court recognises the force of the view expressed by Walsh J in People (Director of Public Prosecutions) v Aylmer (1986) [1995] 2 ILRM 624, that a trial judge, in imposing a sentence in this form, does not in any way interfere with the statutory power of the Minister for Justice to commute or remit the sentence pursuant to s 23 of the Criminal Justice Act, 1951. It is undoubtedly the case that, where such a sentence is imposed, there is in law nothing to prevent the Minister for Justice from exercising his power of commutation or remission during the period between the imposition of the sentence and the review date.

However, the essential legal frailty of the review procedure is not that it deprives the executive of its statutory power to commute or remit the sentence during that period. It is that, when the review date arrives and the Central Criminal Court or the Circuit Court, on being satisfied that the relevant conditions have been met, suspends the balance of the sentence and orders the release of the convicted person, it is in substance exercising the power of commutation or remission which the Oireachtas[8] has entrusted exclusively to the government or the Minister for Justice to whom the power may be delegated. The Minister cannot, of course, in exercising that power do what the court purports to do at the review stage, ie impose a suspended sentence which would normally involve the convicted person being returned to prison on foot of the order of a court in the event of his being convicted of further offences or breaking other conditions attached to the sentence. But if one looks to the substance of the order made by the court at the review date it is clearly an order which releases the convicted person before the completion of the sentence which the judicial arm of government considered appropriate at the sentencing stage and must, accordingly, be regarded as, in all but name, the exercise by the court of the power of commutation or remission which, during the currency of the sentence imposed by the court, is vested exclusively in the executive".

In short, the role of the Executive should not be encroached upon by the judiciary. The concept of separation does not just work "against" the Executive, it works both ways.

16. When dealing with Human Rights legislation in Europe the English courts have recognised the clear distinction between "quasi- judicial" Executive powers and actions and judicial powers.

"The essential contrast struck by the Court of Human Rights was between the administrative implementation of the sentence of the court and fixing the tariff and determining the length of post-tariff detention in life sentence cases; the administrative implementation of determinate sentences did not engage art 5(4) and the decision when to release a prisoner subject to an indeterminate sentence did" [9]

That case involved a prisoner who alleged his rights under art 5b of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Schedule 1 to the Human Rights Act 1998). Article 5(1) provided that everyone had the right to liberty and security of person. No one was to be deprived of his liberty 'save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court ...'. Article 5(4) provided that everyone who was deprived of his liberty by arrest or detention was entitled to take proceedings by which the lawfulness of his detention was to be decided speedily by a court and his release ordered if the detention was not lawful.

17. There are also a number of authorities from other jurisdictions which lead to the conclusion that the Executive cannot encroach upon judicial territory. The Indian Supreme Court case cited by the Claimant, Sarat Chandra Rabha & Ors v. Khagendranath Nath & Ors [1960] INSC 181; AIR 1961 SC334; [1960] INSC 181; 1961 (2) SCR 133 (27 October 1960) separates two "elements" of a sentence. First, the rendering of the judgment, which is a judicial function, and secondly the carrying of the judgement into effect, which is an executive function. The court went on to say,

"We cannot agree that remission by government has the same effect as an order passed by a court of law in appeal or on revision. It is true that under s 7(b) of the Act [10] one has to look at the sentence imposed; but it must be a sentence imposed by a court. Now where the sentence imposed by a trial court is varied by way of reduction by the appellate or revisional court, the final sentence is again imposed by a court; but where a sentence imposed by a court is remitted in part under s401 of the Code of Criminal Procedure that has not the effect in law of reducing the sentence imposed by the court, though in effect the result may be the convicted person suffers less imprisonment than that imposed by the court. The order of remission affects the execution of the sentence imposed by the court but does not affect the sentence as such, which remains what it was in spite of the order of remission"

The decision in the Indian court was cited with approval in the Sri Lankan case of Ellawela v. Wijesundera NLR- 265 of 74 [1971] LKSC 10; 91971) [1971] LKSC 10; 74 NLR 265 (16 June 1971).

18. Both those cases dealt with disqualification from being elected as a member of a legislative body. They are very persuasive authority in looking at the circumstances of this case.

19. Both the Claimant and the Defendants referred me to the Australian case of Kelleher v. Parole Board (NSW) [1984] HCA77; [1984] HCA 77; (1984) 156 CLR 364 (29 November 1984). The case involved the effect and operation of remissions granted by the Head of State to coincide with a visit to Australia by Her majesty Queen Elizabeth II. The court was ruling on the possible different effect on a sentence a grant of remission under the Royal prerogative of mercy might have as opposed to a grant of remission under the Prisons Act. Counsel for the defendants refers to Mason J's comment, "It has commonly been said that a remission of sentence granted in the exercise of the Royal prerogative of mercy cancels or reduces the amount of the sentence". In saying that he was merely setting out the accepted view of one possible effect of the operation of the Royal prerogative of mercy, namely it may affect the original sentence of the court. He later said, "On the other hand there is no solid reason for thinking that the prerogative of mercy extends only to the grant of remissions of sentence which operate to cancel or reduce the sentence". Mason J agreed with the Canadian courts [11] and added, "The Court was merely saying that the question whether the act of clemency operated to pardon the offence or the execution of the punishment was a matter of intention". As regards the difference between the grant of remission under the Royal prerogative and the grant under the legislation, the accepted view was expressed by Wilson J. "I think it must be taken as established by the decision of this Court in Smith v. Corrective Services Commission that remissions granted under the power conferred by s.41 of the Prisons Act do not have the effect of interfering with the nominal sentence".

20. It is not argued in this case that the grant of remission to Mr Lusibaea was a grant by the Head of State pursuant to the powers of the Governor General in section 45 of the Constitution. The defence is clearly put on the basis that it was a grant of the remission of part of the sentence by the Minister. The effect of any remission granted is set out both in the Act and in the Regulations. The Act says at section 2, "'effective sentence' means the term of imprisonment that a prisoner is to serve, after taking into account remission granted under the Act". Regulation 191 makes no mention of the definition in section 2 and simply says, "A term of imprisonment is deemed to run from the day the sentence begins, and to end before noon on the last day of the sentence, after taking into account any remission that has been granted". The Act has provisions for the forfeiture of remission as well as the grant [12]. The Regulations set out the operation of the forfeiture provisions. As a matter of logic the legislation recognises that if remissions can be forfeit as well as granted the original sentence must still be left intact. If that were not so, where is the authority for prisoner to be detained beyond the end of the "effective sentence". Obviously a grant of remission has the effect of shortening the length of time a person might spend in prison but that is not the question. The question is does a grant of remission reduce the sentence imposed by a court. I am of the view the answer to that question is no.

21. That means once the extension granted to Mr Lusibaea in January 2011 expired he was subject to the provisions of section 51(1). The extension has expired, The Speaker's evidence is he only granted the one, to 30th January 2011. Even if I have misunderstood The Speakers evidence, extensions can only be relevant if there is an appeal on foot. Mr Lusibaea did appeal but it appears his appeal was withdrawn in April 2011 although an appeal by the Crown continued. That appeal was dealt with in May 2011. There is now no subsisting appeal which would support an extension under section 51(2).
22. Mr Lusibaea was a Member of Parliament as at 30th November 2010 and on that date he was sentenced to imprisonment for a period in excess of six months. It does not matter that Cameron J ordered the sentence to be backdated to 11th March 2010. In the unambiguous wording of section 51(1) he was a Member of Parliament at the time of sentencing. He should have then ceased to perform his functions as a Member of Parliament and vacated his seat. He did not do so because of the extension of time granted by The Speaker. That was perfectly proper. Neither The Speaker nor Mr Lusibaea can or should be criticised for observing the provisions of the Constitution. However, once that extension expired he should have ceased to perform his duties as an MP and vacated his seat. He did not do so then because of The Speakers public "declaration". The Speaker was wrong to decide Mr Lusibaea could continue sitting as a Member of Parliament because of the provisions of section 51(2). The grant of remissions by the Minister did not reduce the sentence to one of less than six months. Mr Lusibaea ceased to be a Member of Parliament at midnight 30th January 2011.

23. The Claimant is entitled to an order in those terms. As he has succeeded and as costs usually follow the event, he is entitled to an order for costs against the Defendants, such costs to be taxed on a standard basis if not agreed.

Chetwynd J

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^[1] See the sworn statement of The Speaker filed 30^th March 2011
^[2] See page 3 of the letter dated14th January 2011 by the Minister to the Commissioner (of Correctional Services) and contained in the outline submissions filed on behalf of the First and Second Defendants on 30^th August 2011.
^[3] See section 38(1) of the Correctional Services Act 2007
^[4] See paragraph 18 of the statement of case
^[5] See paragraph 7 above
^[6] Regulation 198
^[7] The People (Director of Public Prosecutions), Prosecutor, v Padraig Finn, Defendant - [2001] 2 IR 25
^[8] The Irish legislative body or Parliament
^[9] R (on the application of Black) v Secretary of State for Justice - [2009] 4 All ER 1
^[10] This was a reference to the Indian Act; the Representation of the People Act, No. XLIII of 1951
^[11] Re Royal Prerogative of Mercy Upon Deportation Proceedings (1933) 2 DLR 348
^[12] Section 57 of the Act